Chapter I: Front Matter (1)

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THE

ENGLISH WORKS

OF

THOMAS HOBBES

OF MALMESBURY;

NOW FIRST COLLECTED AND EDITED

BY

SIR WILLIAM MOLESWORTH, BART.

-------

VOL. VI.

-------

LONDON:
JOHN BOHN,
HENRIETTA STREET, COVENT GARDEN.

--

MDCCCXL.

LONDON:
C. RICHARDS, PRINTER, ST. MARTIN’S LANE.

CONTENTS.

A Dialogue between a Philosopher and a Student of the Common Laws
of England 1

Behemoth: the History of the Causes of the Civil Wars of England 161

The Whole Art of Rhetoric 419

The Art of Rhetoric, plainly set forth with pertinent examples
for the more easy understanding of the same 511

The Art of Sophistry 529

A

DIALOGUE

BETWEEN

A PHILOSOPHER & A STUDENT

OF

THE COMMON LAWS OF ENGLAND.

A DIALOGUE

OF

THE COMMON LAW.

==========

[Sidenote: Of the law of reason.]

_Lawyer._ What makes you say, that the study of the law is less rational than the study of the mathematics?

_Philosopher._ I say not that; for all study is rational, or nothing worth: but I say, that the great masters of the _mathematics_ do not so often err as the great professors of the law.

_L._ If you had applied your reason to the law, perhaps you would have been of another mind.

_P._ In whatsoever study, I examine whether my inference be rational: and have looked over the titles of the statutes from Magna Charta downward to this present time. I left not one unread, which I thought might concern myself; which was enough for me, that meant not to plead for any but myself. But I did not much examine which of them was more or less rational; because I read them not to dispute, but to obey them, and saw in all of them sufficient reason for my obedience, and that the same reason, though the Statutes themselves were changed, remained constant. I have also diligently read over Littleton’s book of _Tenures_, with the commentaries thereupon of the renowned lawyer Sir Edward Coke; in which I confess I found great subtilty, not of the law, but of inference from law, and especially from the law of human nature, which is the law of reason: and I confess that it is truth which he says in the epilogue to his book, that by arguments and reason in the law, a man shall sooner come to the certainty and knowledge of the law: and I agree with Sir Edward Coke, who upon that text farther says, that reason is the soul of the law; and upon section 138, _nihil, quod est contra rationem, est licitum_; that is to say, nothing is law that is against reason; and that reason is the life of the law, nay the common law itself is nothing else but reason; and upon section 21, _æquitas est perfecta quædam ratio, quæ jus scriptum interpretatur et emendat, nulla scriptura comprehensa, sed solum in vera ratione consistens_; _i. e._ Equity is a certain perfect reason, that interpreteth and amendeth the law written, itself being unwritten, and consisting in nothing else but right reason. When I consider this, and find it to be true, and so evident as not to be denied by any man of right sense, I find my own reason at a stand; for it frustrates all the laws in the world. For upon this ground any man, of any law whatsoever, may say it is against reason, and thereupon make a pretence for his disobedience. I pray you clear this passage, that we may proceed.

_L._ I clear it thus, out of Sir Edward Coke (I. Inst. sect. 138), that this is to be understood of an artificial perfection of reason, gotten by long study, observation, and experience, and not of every man’s natural reason; for _nemo nascitur artifex_. This legal reason is _summa ratio_; and therefore if all the reason that is dispersed into so many several heads, were united into one, yet could he not make such a law as the law of England is; because by so many successions of ages it hath been fined and refined by an infinite number of grave and learned men.

_P._ This does not clear the place, as being partly obscure, and partly untrue. That the reason which is the life of the law, should be not natural, but artificial, I cannot conceive. I understand well enough, that the knowledge of the law is gotten by much study, as all other sciences are, which when they are studied and obtained, it is still done by natural, and not by artificial reason. I grant you, that the knowledge of the law is an art; but not that any art of one man, or of many, how wise soever they be, or the work of one or more artificers, how perfect soever it be, is law. It is not wisdom, but authority that makes a law. Obscure also are the words _legal reason_. There is no reason in earthly creatures, but human reason. But I suppose that he means, that the reason of a judge, or of all the judges together without the King, is that _summa ratio_, and the very law: which I deny, because none can make a law but he that hath the legislative power. That the law hath been fined by grave and learned men, meaning the professors of the law, is manifestly untrue; for all the laws of England have been made by the kings of England, consulting with the nobility and commons in parliament, of which not one of twenty was a learned lawyer.

_L._ You speak of the statute law, and I speak of the common law.

_P._ I speak generally of law.

_L._ Thus far I agree with you, that statute law taken away, there would not be left, either here, or any where, any law at all that would conduce to the peace of a nation; yet equity and reason, (laws Divine and eternal, which oblige all men at all times, and in all places), would still remain, but be obeyed by few: and though the breach of them be not punished in this world, yet they will be punished sufficiently in the world to come. Sir Edward Coke, for drawing to the men of his own profession as much authority as lawfully he might, is not to be reprehended; but to the gravity and learning of the judges they ought to have added in the making of laws, the authority of the King, which hath the sovereignty: for of these laws of reason, every subject that is in his wits, is bound to take notice at his peril, because reason is part of his nature, which he continually carries about with him, and may read it, if he will.

_P._ It is very true; and upon this ground, if I pretend within a month or two to make myself able to perform the office of a judge, you are not to think it arrogance; for you are to allow to me, as well as to other men, my pretence to reason, which is the common law, (remember this, that I may not need again to put you in mind, that reason is the common law): and for statute law, seeing it is printed, and that there be indexes to point me to every matter contained in them, I think a man may profit in them very much in two months.

_L._ But you will be but an ill pleader.

_P._ A pleader commonly thinks he ought to say all he can for the benefit of his client, and therefore has need of a faculty to wrest the sense of words from their true meaning, and the faculty of _rhetoric_ to seduce the jury, and sometimes the judge also, and many other arts which I neither have, nor intend to study.

_L._ But let the judge, how good soever he thinks his reasoning, take heed that he depart not too much from the letter of the statute: for it is not without danger.

_P._ He may without danger recede from the letter, if he do not from the meaning and sense of the law; which may be by a learned man, (such as judges commonly are,) easily found out by the preamble, the time when it was made, and the incommodities for which it was made. But I pray tell me, to what end were statute laws ordained, seeing the law of reason ought to be applied to every controversy that can arise.

_L._ You are not ignorant of the force of an irregular appetite to riches, to power, and to sensual pleasures, how it masters the strongest reason, and is the root of disobedience, slaughter, fraud, hypocrisy, and all manner of evil habits; and that the laws of man, though they can punish the fruits of them, which are evil actions, yet they cannot pluck up the roots that are in the heart. How can a man be indicted of avarice, envy, hypocrisy, or other vicious habit, till it be declared by some action which a witness may take notice of? The root remaining, new fruit will come forth, till you be weary of punishing, and at last destroy all power that shall oppose it.

_P._ What hope then is there of a constant peace in any nation, or between one nation and another?

_L._ You are not to expect such a peace between two nations; because there is no common power in this world to punish their injustice. Mutual fear may keep them quiet for a time; but upon every visible advantage they will invade one another; and the most visible advantage is then, when the one nation is obedient to their king, and the other not. But peace at home may then be expected durable, when the common people shall be made to see the benefit they shall receive by their obedience and adhesion to their own sovereign, and the harm they must suffer by taking part with them, who by promises of reformation, or change of government, deceive them. And this is properly to be done by divines, and from arguments not only from reason, but also from the Holy Scripture.

_P._ This that you say is true, but not very much to that I aim at by your conversation, which is to inform myself concerning the laws of England. Therefore I ask you again, what is the end of statute-laws?

[Sidenote: Of sovereign power.]

_L._ I say then that the scope of all human law is peace, and justice in every nation amongst themselves, and defence against foreign enemies.

_P._ But what is justice?

_L._ Justice is giving to every man his own.

_P._ The definition is good, and yet it is Aristotle’s. What is the definition agreed upon as a principle in the science of the common law?

_L._ The same with that of Aristotle.

_P._ See, you lawyers, how much you are beholden to the philosopher; and it is but reason; for the more general and noble science and law of all the world, is true philosophy, of which the common law of England is a very little part.

_L._ It is so, if you mean by philosophy nothing but the study of reason; as I think you do.

_P._ When you say that justice gives to every man his own, what mean you by his own? How can that be given me, which is my own already? Or, if it be not my own, how can justice make it mine?

_L._ Without law, every thing is in such sort every man’s, as he may take, possess, and enjoy, without wrong to any man; every thing, lands, beasts, fruits, and even the bodies of other men, if his reason tell him he cannot otherwise live securely. For the dictates of reason are little worth, if they tended not to the preservation and improvement of men’s lives. Seeing then without human law all things would be common, and this community a cause of encroachment, envy, slaughter, and continual war of one upon another, the same law of reason dictates to mankind, for their own preservation, a distribution of lands and goods, that each man may know what is proper to him, so as none other might pretend a right thereunto, or disturb him in the use of the same. This distribution is justice, and this properly is the same which we say is one’s own; by which you may see the great necessity there was of statute laws, for preservation of all mankind. It is also a dictate of the law of reason, that statute laws are a necessary means of the safety and well-being of man in the present world, and are to be obeyed by all subjects, as the law of reason ought to be obeyed, both by King and subjects, because it is the law of God.

_P._ All this is very rational; but how can any laws secure one man from another, when the greatest part of men are so unreasonable, and so partial to themselves as they are, and the laws of themselves are but a dead letter, which of itself is not able to compel a man to do otherwise than himself pleaseth, nor punish or hurt him when he hath done a mischief?

_L._ By the laws, I mean laws living and armed. For you must suppose, that a nation that is subdued by war to an absolute submission to a conqueror, may, by the same arm that compelled it to submission, be compelled to obey his laws. Also, if a nation choose a man, or an assembly of men, to govern them by laws, it must furnish him also with armed men and money, and all things necessary to his office; or else his laws will be of no force, and the nation remains, as before it was, in confusion. It is not therefore the word of the law, but the power of a man that has the strength of a nation, that make the laws effectual. It was not Solon that made Athenian laws, though he devised them, but the supreme court of the people; nor, the lawyers of Rome that made the imperial law in Justinian’s time, but Justinian himself.

_P._ We agree then in this, that in England it is the King that makes the laws, whosoever pens them; and in this, that the King cannot make his laws effectual, nor defend his people against their enemies, without a power to levy soldiers; and consequently, that he may lawfully, as oft as he shall really think it necessary to raise an army, (which in some occasions be very great) I say, raise it, and money to maintain it. I doubt not but you will allow this to be according to the law, at least of reason.

_L._ For my part I allow it. But you have heard how, in and before the late troubles the people were of another mind. Shall the King, said they, take from us what he pleases, upon pretence of a necessity whereof he makes himself the judge? What worse condition can we be in from an enemy? What can they take from us more than what they list?

_P._ The people reason ill. They do not know in what condition we were, in the time of the Conqueror, when it was a shame to be an Englishman; who, if he grumbled at the base offices he was put to by his Norman masters, received no other answer than this, _thou art but an Englishman_. Nor can the people, nor any man that humours their disobedience, produce any example of a King that ever raised any excessive sums, either by himself or by the consent of his Parliament, but when they had great need thereof; nor can show any reason that might move any of them so to do. The greatest complaint by them made against the unthriftiness of their Kings, was for the enriching now and then a favourite, which to the wealth of the kingdom was inconsiderable, and the complaint but envy. But in this point of raising soldiers, what is, I pray you, the statute law?

_L._ The last statute concerning it, is 13 _Car._ II. cap. 6, by which the supreme government, command, and disposing of the militia of England, is delivered to be, and always to have been, the ancient right of the Kings of England. But there is also in the same act a proviso, that this shall not be construed for a declaration, that the King may transport his subjects, or compel them to march out of the kingdom; nor is it, on the contrary, declared to be unlawful.

_P._ Why is not that also determined?

_L._ I can imagine cause enough for it, though I may be deceived. We love to have our King amongst us, and not to be governed by deputies, either of our own or another nation. But this I verily believe, that if a foreign enemy should either invade us, or put himself into a readiness to invade either England, Ireland, or Scotland, no Parliament then sitting, and the King send English soldiers thither, the Parliament would give him thanks for it. The subjects of those Kings who affect the glory, and imitate the actions, of Alexander the Great, have not always the most comfortable lives, nor do such Kings usually very long enjoy their conquests. They march to and fro perpetually, as upon a plank sustained only in the midst; and when one end rises, down goes the other.

_P._ It is well. But where soldiers, in the judgment of the King’s conscience, are indeed necessary, as in an insurrection, or rebellion at home; how shall the kingdom be preserved without a considerable army ready and in pay? How shall money be raised for this army, especially when the want of public treasure inviteth neighbour Kings to encroach, and unruly subjects to rebel?

_L._ I cannot tell. It is matter of polity, not of law. But I know, that there be statutes express, whereby the King hath obliged himself never to levy money upon his subjects without the consent of his Parliament. One of which statutes is 25 _Edw._ I. c. 6, in these words: _We have granted for us, and our heirs, as well to archbishops, bishops, abbots, priors, and other folk of holy Church, as also to earls, barons, and to all the commonalty of the land, that for no business from henceforth, we shall take such aids, tasks, or prizes, but by the common consent of the realm_. There is also another statute of _Edward_ I. (34 _Edw._ I. stat. 4) in these words: _No tallage, or aid shall be taken or levied by us or our heirs in our realm, without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land_; which statutes have been since that time confirmed by divers other Kings, and lastly by the King that now reigneth.

_P._ All this I know, and am not satisfied. I am one of the common people, and one of that almost infinite number of men, for whose welfare Kings and other sovereigns were by God ordained: for God made Kings for the people, and not people for Kings. How shall I be defended from the domineering of proud and insolent strangers that speak another language, that scorn us, that seek to make us slaves, or how shall I avoid the destruction that may arise from the cruelty of factions in a civil war, unless the King, to whom alone, you say, belongeth the right of levying and disposing of the militia by which only it can be prevented, have ready money, upon all occasions, to arm and pay as many soldiers, as for the present defence, or the peace of the people, shall be necessary? Shall not I, and you, and every man be undone? Tell me not of a Parliament, when there is no Parliament sitting, or perhaps none in being, which may often happen. And when there is a Parliament, if the speaking and leading men should have a design to put down monarchy, as they had in the Parliament which began to sit the third of November, 1640, shall the King, who is to answer to God Almighty for the safety of the people, and to that end is intrusted with the power to levy and dispose of the soldiery, be disabled to perform his office, by virtue of these acts of Parliament which you have cited? If this be reason, it is reason also that the people be abandoned, or left at liberty to kill one another, even to the last man; if it be not reason, then you have granted it is not law.

_L._ It is true, if you mean _recta ratio_; but _recta ratio_, which I grant to be law, as Sir Edward Coke says, (1 _Inst._ sect. 138), is an artificial perfection of reason, gotten by long study, observation, and experience, and not every man’s natural reason; for _nemo nascitur artifex_. This legal reason is _summa ratio_; and therefore, if all the reason that is dispersed into so many several heads, were united into one, yet could he not make such a law as the law of England is, because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men. And this is it, he calls the common law.

_P._ Do you think this to be good doctrine? Though it be true, that no man is born with the use of reason, yet all men may grow up to it as well as lawyers; and when they have applied their reason to the laws, (which were laws before they studied them, or else it was not law they studied), may be as fit for and capable of judicature, as Sir Edward Coke himself, who whether he had more or less use of reason, was not thereby a judge, but because the King made him so. And whereas he says, that a man who should have as much reason as is dispersed in so many several heads, could not make such a law as this law of England is; if one should ask him who made the law of England, would he say a succession of English lawyers or judges made it, or rather a succession of kings? And that upon their own reason, either solely, or with the advice of the Lords and Commons in Parliament, without the judges or other professors of the law? You see therefore that the King’s reason, be it more or less, is that _anima legis_, that _summa lex_, whereof Sir Edward Coke speaketh, and not the reason, learning, or wisdom of the judges. But you may see, that quite through his _Institutes of Law_, he often takes occasion to magnify the learning of the lawyers, whom he perpetually termeth the sages of the Parliament, or of the King’s council. Therefore unless you say otherwise, I say, that the King’s reason, when it is publicly upon advice and deliberation declared, is that _anima legis_; and that _summa ratio_ and that equity, which all agree to be the law of reason, is all that is or ever was law in England, since it became Christian, besides the Bible.

_L._ Are not the Canons of the Church part of the law of England, as also the imperial law used in the Admiralty, and the customs of particular places, and the by-laws of corporations and courts of judicature?

_P._ Why not? For they were all constituted by the Kings of England; and though the civil law used in the Admiralty were at first the statutes of the Roman empire, yet because they are in force by no other authority than that of the King, they are now the King’s laws, and the King’s statutes. The same we may say of the Canons; such of them as we have retained, made by the Church of Rome, have been no law, nor of any force in England, since the beginning of Queen Elizabeth’s reign, but by virtue of the great seal of England.

_L._ In the said statutes that restrain the levying of money without consent of Parliament, is there any thing you can take exceptions to?

_P._ No. I am satisfied that the kings that grant such liberties, are bound to make them good, so far as it may be done without sin: but if a King find that by such a grant he be disabled to protect his subjects, if he maintain his grant, he sins; and therefore may, and ought to take no notice of the said grant. For such grants, as by error or false suggestion are gotten from him, are, as the lawyers do confess, void and of no effect, and ought to be recalled. Also the King, as is on all hands confessed, hath the charge lying upon him to protect his people against foreign enemies, and to keep the peace betwixt them within the kingdom: if he do not his utmost endeavour to discharge himself thereof, he committeth a sin, which neither King nor Parliament can lawfully commit.

_L._ No man, I think, will deny this. For if levying of money be necessary, it is a sin in the Parliament to refuse; if unnecessary, it is a sin both in King and Parliament to levy. But for all that, it may be, and I think it is, a sin in any one that hath the sovereign power, be he one man or one assembly, being intrusted with the safety of a whole nation, if rashly, and relying upon his own natural sufficiency, he make war or peace, without consulting with such, as by their experience and employment abroad, and intelligence by letters, or other means, have gotten the knowledge in some measure of the strength, advantages, and designs of the enemy, and the manner and the degree of the danger that may from thence arise. In like manner, in case of rebellion at home, if he consult not with those of military condition; which if he do, then I think he may lawfully proceed to subdue all such enemies and rebels; and that the soldiers ought to go on without inquiring whether they be within the country, or without. For who shall suppress rebellion, but he that hath right to levy, command, and dispose of the militia? The last Long Parliament denied this. But why? Because by the major part of their votes the rebellion was raised with the design to put down monarchy, and to that end maintained.

_P._ Nor do I hereby lay any aspersion upon such grants of the King and his ancestors. Those statutes are in themselves very good for the King and the people, as creating some kind of difficulty for such Kings as, for the glory of conquest, might spend one part of their subjects' lives and estates in molesting other nations, and leave the rest to destroy themselves at home by factions. That which I here find fault with, is the wresting of those, and other such statutes, to the binding of our Kings from the use of their armies in the necessary defence of themselves and their people. The late Long Parliament, that in 1648 murdered their King, (a King that sought no greater glory upon earth, but to be indulgent to his people, and a pious defender of the Church of England,) no sooner took upon them the sovereign power, than they levied money upon the people at their own discretion. Did any of their subjects dispute their power? Did they not send soldiers over the sea to subdue Ireland, and others to fight against the Dutch at sea; or made they any doubt but to be obeyed in all that they commanded, as a right absolutely due to the sovereign power in whomsoever it resides? I say not this as allowing their actions, but as a testimony from the mouths of those very men that denied the same power to him whom they acknowledged to have been their sovereign immediately before; which is a sufficient proof, that the people of England never doubted of the King’s right to levy money for the maintenance of his armies, till they were abused in it by seditious teachers, and other prating men, on purpose to turn the State and Church into popular government, where the most ignorant and boldest talkers do commonly obtain the best preferments. Again, when their new republic returned into monarchy by Oliver, who durst deny him money upon any pretence of _Magna Charta_, or of these other acts of Parliament which you have cited? You may therefore think it good law, for all your books, that the King of England may at all times, that he thinks in his conscience it will be necessary for the defence of his people, levy as many soldiers and as much money as he please, and that himself is judge of the necessity.

_L._ Is there nobody hearkening at the door?

_P._ What are you afraid of?

_L._ I mean to say the same that you say: but there be very many yet, that hold their former principles, whom neither the calamities of the civil wars, nor their former pardon, have thoroughly cured of their madness.

_P._ The common people never take notice of what they hear of this nature, but when they are set on by such as they think wise; that is, by some sorts of preachers, or some that seem to be learned in the laws, and withal speak evil of the governors. But what if the King, upon the sight or apprehension of any great danger to his people, (as when their neighbours are borne down by the current of a conquering enemy), should think his own people might be involved in the same misery; may he not levy, pay, and transport soldiers to help those weak neighbours, by way of prevention to save his own people and himself from servitude? Is that a sin?

_L._ First, if the war upon our neighbour be just, it may be questioned whether it be equity or no to assist them against the right.

_P._ For my part, I make no question of that at all, unless the invader will, and can, put me in security, that neither he nor his successors shall make any advantage of the conquest of my neighbour, to do the same to me in time to come. But there is no common power to bind them to the peace.

_L._ Secondly, when such a thing shall happen, the Parliament will not refuse to contribute freely to the safety of themselves and the whole nation.

_P._ It may be so, and it may be not; for if a Parliament then sit not, it must be called; that requires six weeks' time; debating and collecting what is given requires as much, and in this time the opportunity perhaps is lost. Besides, how many wretched souls have we heard to say in the late troubles; what matter is it who gets the victory? We can pay but what they please to demand, and so much we pay now. And this they will murmur, as they have ever done, whosoever shall reign over them, as long as their covetousness and ignorance hold together; which will be till doomsday, if better order be not taken for their instruction in their duty, both from reason and religion.

_L._ For all this I find it somewhat hard, that a King should have right to take from his subjects, upon the pretence of necessity, what he pleaseth.

_P._ I know what it is that troubles your conscience in this point. All men are troubled at the crossing of their wishes; but it is our own fault. First, we wish impossibilities; we would have our security against all the world upon right of property, without paying for it; this is impossible. We may as well expect that fish and fowl should boil, roast, and dish themselves, and come to the table, and that grapes should squeeze themselves into our mouths, and have all other the contentments and ease which some pleasant men have related of the land of Cocagne. Secondly, there is no nation in the world where he or they that have the sovereignty, do not take what money they please for the defence of those respective nations, when they think it necessary for their safety. The late Long Parliament denied this; but why? Because there was a design amongst them to depose the King. Thirdly, there is no example of any King of England that I have read of, that ever pretended any such necessity for levying money against his conscience. The greatest sums that ever were levied, comparing the value of money, as it was at that time, with what it is now, were levied by King Edward III and King Henry V; kings in whom we glory now, and think their actions great ornaments to the English history. Lastly, as to the enriching now and then a favourite, it is neither sensible to the kingdom, nor is any treasure thereby conveyed out of the realm, but so spent as it falls down again upon the common people. To think that our condition being human should be subject to no incommodity, were injuriously to quarrel with God Almighty for our own faults.

_L._ I know not what to say.

_P._ If you allow this that I have said, then say, that the people never were, shall be, or ought to be, free from being taxed at the will of one or other; that if civil war come, they must levy all they have, and that dearly, from the one or from the other, or from both sides. Say, that adhering to the King, their victory is an end of their trouble; that adhering to his enemies there is no end; for the war will continue by a perpetual subdivision, and when it ends, they will be in the same estate they were before. That they are often abused by men who to them seem wise, when then their wisdom is nothing else but envy of those that are in grace and in profitable employments; and that those men do but abuse the common people to their own ends, that set up a private man’s propriety against the public safety. But say withal, that the King is subject to the laws of God, both written and unwritten, and to no other; and so was William the Conqueror, whose right is all descended to our present King.

_L._ As to the law of reason, which is equity, it is sure enough there is but one legislator, which is God.

_P._ It followeth, then, that which you call the common law, distinct from statute law, is nothing else but the law of God.

_L._ In some sense it is; but it is not Gospel, but natural reason, and natural equity.

_P._ Would you have every man to every other man allege for law his own particular reason? There is not amongst men a universal reason agreed upon in any nation, besides the reason of him that hath the sovereign power. Yet though his reason be but the reason of one man, yet it is set up to supply the place of that universal reason, which is expounded to us by our Saviour in the Gospel; and consequently our King is to us the legislator both of statute-law, and of common-law.

_L._ Yes, I know that the laws spiritual, which have been law in this kingdom since the abolishing of popery, are the King’s laws, and those also that were made before. For the Canons of the Church of Rome were no laws, neither here, nor anywhere else without the Pope’s temporal dominions, farther than kings and states in their several dominions respectively did make them so.

_P._ I grant that. But you must grant also, that those spiritual laws were made by the legislators of the spiritual law. And yet not all kings and states make laws by consent of the Lords and Commons; but our King here is so far bound to their assents, as he shall judge conducing to the good and safety of his people. For example, if the Lords and Commons should advise him to restore those laws spiritual, which in Queen Mary’s time were in force, I think the King were by the law of reason obliged, without the help of any other law of God, to neglect such advice.

_L._ I grant you that the King is sole legislator; but with this restriction, that if he will not consult with the Lords of Parliament, and hear the complaints and informations of the Commons, that are best acquainted with their own wants, he sinneth against God, though he cannot be compelled to any thing by his subjects by arms and force.

_P._ We are agreed upon that already. Since therefore the King is sole legislator, I think it also reason he should be sole supreme judge.

[Sidenote: The King is the supreme judge.]

_L._ There is no doubt of that; for otherwise there would be no congruity of judgments with the laws. I grant also that he is the supreme judge over all persons, and in all causes civil and ecclesiastical within his own dominions; not only by act of Parliament at this time, but that he has ever been so by the common law. For the judges of both the Benches have their offices by the King’s letters-patent; and so as to judicature have the bishops. Also the Lord Chancellor hath his office by receiving from the King the Great Seal of England. And, to say all at once, there is no magistrate, or commissioner for public business, neither of judicature nor execution, in State or Church, in peace or war, but he is made so by authority from the King.

_P._ It is true; but perhaps you may think otherwise, when you read such acts of parliament, as say, that the King shall have power and authority to do this or that by virtue of that act, as _Elizabeth_ c. I. “that your highness, your heirs, and successors, Kings, or Queens of this realm, shall have full power and authority, by virtue of this act, by letters-patent under the great seal of England, to assign, &c.” Was it not this Parliament that gave this authority to the Queen?

_L._ No. For the statute in this clause is no more than, as Sir Edward Coke useth to speak, an affirmance of the common-law. For she being head of the Church of England, might make commissioners for the deciding of matters ecclesiastical, as freely as if she had been Pope, who did, you know, pretend his right from the law of God.

_P._ We have hitherto spoken of laws without considering anything of the nature and essence of a law; and now unless we define the word _law_, we can go no farther without ambiguity and fallacy, which will be but loss of time; whereas, on the contrary, the agreement upon our words will enlighten all we have to say hereafter.

_L._ I do not remember the definition of _law_ in any statute.

_P._ I think so: for the statutes were made by authority, and not drawn from any other principles than the care of the safety of the people. Statutes are not philosophy, as is the common-law, and other disputable arts, but are commands or prohibitions, which ought to be obeyed, because assented to by submission made to the Conqueror here in England, and to whosoever had the sovereign power in other commonwealths; so that the positive laws of all places are statutes. The definition of law was therefore unnecessary for the makers of statutes, though very necessary to them whose work it is to teach the sense of the law.

_L._ There is an accurate definition of a law in Bracton, cited by Sir Edward Coke: _Lex est sanctio justa, jubens honesta, et prohibens contraria_.

_P._ That is to say, law is a just statute, commanding those things which are honest, and forbidding the contrary. From whence it followeth, that in all cases it must be the honesty or dishonesty that makes the command a law; whereas you know that but for the law we could not, as saith St. Paul, have known what is sin. Therefore this definition is no ground at all for any farther discourse of law. Besides, you know the rule of honest and dishonest refers to honour, and that it is justice only, and injustice, that the law respecteth. But that which I most except against in this definition, is, that it supposes that a statute made by the sovereign power of a nation may be unjust. There may indeed in a statute-law, made by men, be found iniquity, but not injustice.

_L._ This is somewhat subtile. I pray deal plainly. What is the difference between injustice and iniquity?

_P._ I pray you tell me first, what is the difference between a court of justice, and a court of equity?

_L._ A court of justice is that which hath cognizance of such causes as are to be ended by the positive laws of the land; and a court of equity is that, to which belong such causes as are to be determined by equity; that is to say, by the law of reason.

_P._ You see then that the difference between injustice and iniquity is this; that injustice is the transgression of a statute-law, and iniquity the transgression of the law of reason. But perhaps you mean by common-law, not the law itself, but the manner of proceeding in the law, as to matter of fact, by twelve men, freeholders; though those twelve men are no court of equity, nor of justice, because they determine not what is just or unjust, but only whether it be done or not done; and their judgment is nothing else but a confirmation of that which is properly the judgment of the witnesses. For to speak exactly, there cannot possibly be any judge of fact besides the witnesses.

_L._ How would you have a law defined?

_P._ Thus; a law is the command of him or them that have the sovereign power, given to those that be his or their subjects, declaring publicly and plainly what every of them may do, and what they must forbear to do.

_L._ Seeing all judges in all courts ought to judge according to equity, which is the law of reason, a distinct court of equity seemeth to me to be unnecessary, and but a burthen to the people, since common-law and equity are the same law.

_P._ It were so indeed, if judges could not err; but since they may err, and that the King is not bound to any other law but that of equity, it belongs to him alone to give remedy to them that, by the ignorance or corruption of a judge, shall suffer damage.

_L._ By your definition of a law, the King’s proclamation under the Great Seal of England is a law; for it is a command, and public, and of the sovereign to his subjects.

_P._ Why not, if he think it necessary for the good of his subjects? For this is a maxim at the common-law alleged by Sir Edward Coke himself, (I Inst. sect. 306), _Quando lex aliquid concedit, concedere videtur et id per quod devenitur ad illud_. And you know out of the same author, that divers Kings of England have often, to the petitions in Parliament which they granted, annexed such exceptions as these, _unless there be necessity, saving our regality_; which I think should be always understood, though they be not expressed; and are understood so by common lawyers, who agree that the King may recall any grant wherein he was deceived.

_L._ Again, whereas you make it of the essence of a law to be publicly and plainly declared to the people, I see no necessity for that. Are not all subjects bound to take notice of all acts of Parliament, when no act can pass without their consent?

_P._ If you had said that no act could pass without their knowledge, then indeed they had been bound to take notice of them; but none can have knowledge of them but the members of the houses of Parliament; therefore the rest of the people are excused. Or else the knights of the shire should be bound to furnish people with a sufficient number of copies, at the people’s charge, of the acts of Parliament, at their return into the country; that every man may resort to them, and by themselves, or friends, take notice of what they are obliged to. For otherwise it were impossible they should be obeyed: and that no man is bound to do a thing impossible, is one of Sir Edward Coke’s maxims at the common-law. I know that most of the statutes are printed; but it does not appear that every man is bound to buy the book of statutes, nor to search for them at Westminster or at the Tower, nor to understand the language wherein they are for the most part written.

_L._ I grant it proceeds from their own faults; but no man can be excused by ignorance of the law of reason, that is to say, by ignorance of the common-law, except children, madmen, and idiots. But you exact such a notice of the statute-law, as is almost impossible. Is it not enough that they in all places have a sufficient number of the penal statutes?

_P._ Yes; if they have those penal statutes near them. But what reason can you give me why there should not be as many copies abroad of the statutes, as there be of the Bible?

_L._ I think it were well that every man that can read, had a statute-book; for certainly no knowledge of those laws, by which men’s lives and fortunes can be brought into danger, can be too much. I find a great fault in your definition of law; which is, that every law either forbiddeth or commandeth something. It is true that the moral law is always a command or a prohibition, or at least implieth it. But in the Levitical law, where it is said that he that stealeth a sheep shall restore fourfold, what command or prohibition lieth in these words?

_P._ Such sentences as that are not in themselves general, but judgments; nevertheless, there is in those words implied a commandment to the judge, to cause to be made a fourfold restitution.

_L._ That is right.

_P._ Now define what justice is, and what actions and men are to be called just.

_L._ Justice is the constant will of giving to every man his own; that is to say, of giving to every man that which is his right, in such manner as to exclude the right of all men else to the same thing. A just action is that which is not against the law. A just man is he that hath a constant will to live justly; if you require more, I doubt there will no man living be comprehended within the definition.

_P._ Seeing then that a just action, according to your definition, is that which is not against the law; it is manifest that before there was a law, there could be no injustice; and therefore laws are in their nature antecedent to justice and injustice. And you cannot deny but there must be law-makers, before there were any laws, and consequently before there was any justice, (I speak of human justice); and that law-makers were before that which you call _own_, or property of goods or lands, distinguished by _meum_, _tuum_, _alienum_.

_L._ That must be granted; for without statute-laws, all men have right to all things; and we have had experience, when our laws were silenced by civil war, there was not a man, that of any goods could say assuredly they were his own.

_P._ You see then that no private man can claim a propriety in any lands, or other goods, from any title from any man but the King, or them that have the sovereign power; because it is in virtue of the sovereignty, that every man may not enter into and possess what he pleaseth; and consequently to deny the sovereign anything necessary to the sustaining of his sovereign power, is to destroy the propriety he pretends to. The next thing I will ask you is, how you distinguish between law and right, or _lex_ and _jus_.

_L._ Sir Edward Coke in divers places makes _lex_ and _jus_ to be the same, and so _lex communis_ and _jus communis_, to be all one; nor do I find that he does in any place distinguish them.

_P._ Then will I distinguish them, and make you judge whether my distinction be not necessary to be known by every author of the common-law. For law obligeth me to do, or forbear the doing of something; and therefore it lays upon me an obligation. But my right is a liberty left me by the law to do any thing which the law forbids me not, and to leave undone any thing which the law commands me not. Did Sir Edward Coke see no difference between being bound and being free?

_L._ I know not what he saw, but he has not mentioned it. Though a man may dispense with his own liberty, he cannot do so with the law.